MUHAMMAD AMEER BHATTI, J. --- This Constitutional petition is directed against the order dated 17.07.2009 passed by the learned Revisional Court/respondent No. 1. Whereby while accepting the revision petition filed by the respondents by reversing the order dated 12.02.2009 through which the learned Trial Court on the application under Section 12(2), CPC set aside the judgment and decree dated 02.12.1998.
2. The brief facts of the case necessary for the disposal of this case are that a suit for declaration was filed by Inayat Ullah. Predecessor-ininterest of respondents' No. 2 to 9 against gift mutation No. 954 dated 12.07.1985 sanctioned in favour of the respondents No. 10 to 20 by Inayet Ullah, the original owner of the land in dispute. This suit was resisted by the respondents No. 10 to 20 and remained pending till 02.12.1998 and on the said date, it was decreed on the consenting statement made by the respondents/defendants. During pendency of this suit, the present writ petitioners entered into an agreement with die defendants of the suit whereby they exchanged land measuring 22-K, 06-M out 'f the disputed land. Although, this exchange was made during pendency of the suit and the status-quo granted by the learned Trial Court, however, after this exchange, the made the consenting statement and got the suit decreed is favour of tl.e plaintiffs .
The present petitioners came to know about the consenting decree and filed an application under Section 12(2), CPC for setting aside the said consent decree on 12.02.1998. This application was resisted by all the plaintiffs and defendants/respondents and after framing the issues by the learned Trial Court and providing opportunity of leading the evidence, vide his judgment dated 12.02.2009 set aside the judgment and decree dated 02.12.1998. Against this judgment, the present respondents filed a revision petition before the learned respondent No. 1, who vide his judgment dated 17.07.2009, set aside the judgment of the learned Trial Court and resultantly dismissed the application of the present petitioners under Section 12(2), CPC on the main ground that during the pendency of the status-quo, the land has been got exchanged, the attorney was not authorized to make any alienation of property, hence whatever had been done by the respondents was illegal, having no legal effect. As such on the basis of that illegal transaction, the present petitioners got no case under Section 12(2), CPC and order was accordingly passed, hence this writ petition.
3. Learned counsel for the petitioners contends that after alienating the land measuring 22-K, 06-M out of total land in dispute through exchange deed in favour of the petitioners, respondents No. 10 to 20 had no authority to make the conceding statement in the suit of the respondents No. 2 to 9, hence the decree obtained by the respondents was the outcome of fraud not only committed with the Court but also with the present petitioners. This aspect of the case has not been considered by the respondent No. 1/Revisional Court which has seriously prejudiced the case of the petitioners, hence the order is illegal, without lawful authority and against the natural justice and not sustainable in the eye of law.
4. On the other hand, learned counsel for the respondents in support of the order of the learned respondent No. 1 contends that:-
(i) the writ petition is not maintainable against the impugned order.
(ii) No exchange had taken place, it was a fraudulent and collusive transaction.
(iii) And the principle of lis pendence has been rightly applied by the learned first Appellate Court and the present writ petition is liable to be dismissed, as nothing has been found illegal, unlawful and without any justification in the order of the learned Revisional Court/respondent No. 1.
5. I have considered the arguments of the learned counsel for the parties and gone through the record of the case.
6. The emphasis of the learned Revisional Court is that the present petitioners have failed to prove on record about the commission of fraud and misrepresentation by Inayat Ullah plaintiff while procuring the judgment and decree in his favour. I am of the view that the learned Revisional Court has failed to properly comprehend the, proposition involved in the lis before him. The fraud in fact has been committed by the defendants of the suit. On one hand, they entered into an exchange transaction with the present petitioners about the same land which was disputed in the suit but on the other hand, the same respondent made the conceding statement to facilitate the decree of the suit of Inayat Ullah plaintiff. After the exchange transaction with the present petitioners. The respondents/defendants of the suit were not in a position to make the conceding statement in the Suit of Inayat Ullah to the extent of land measuring 22-K, 06-M. Although, the principle of lis pendense is applicable and there is no denial to this effect but where the defendants of the suit have failed to defend the suit by tooth and nail, then it stands settled by the Hon'ble Supreme Court that the transferee of the said land should have been allowed to contest the suit. Since the defendants of the suit/respondents No. 10 to 20 after entering into an exchange transaction with the present petitioners, were in collusion with the plaintiff of the suit and made the conceding statement and got the suit decreed in favour of the plaintiff just to cause nullify the transaction of thea present petitioners, hence the decree cannot be considered a valid decree in the eye ot law and the chance should have been provided to defend the suit to the extent of the right accrued in favour of the present petitioners after exchange tratisaction, It is no doubt that according to the principle of Us pendence, no transaction can sustain in the eye of law after the decree has been passed in the suit but it must have been passed in accordance with law and on merits while ensuring tat obviation of any fraud with the innocent persons. Since the respondents No. 10 to '20 have apparently, as held by the learned Trial Court, entered into an exchange transaction with the present petitioners, hence decree to he extent of 22-K, 06-M could not have been passed without providing the opportunity of hearing to the present petitioners and this aspect of the case has not been considered by the learned Revisional Court which has hampered the cause of justice to the petitioner's case.
7. In this view of the matter. I come to this definite conclusion, that the order dated 17.07.2009 passed by the learned Revisional Court/respondent No. 1 is not sustainable in the eye of law. In exercise of Constitutional jurisdiction, 1 feel obligated to interfere in such-'like illegal orders to provide the justice to the innocent persons. Therefore, the order dated 17.07.2009 is hereby declared illegal, unlawful and unsustainable in the eye of law. The same is set aside. However. I deem it appropriate to amend the judgment of the learned Civil Judge dated 12.02.2009 through which he set aside the decree passed in a suit dated 02.12.1998. Since the claim of the present petitioners is to the extent of 22-K, 06-M, this decree is only set aside to this extent but the order/judgment of the learned Trial Court is also modified extent.
8. For what has been discussed above, this petition, is allowed, in the above terms and the parties are directed to appear before the learned Trial Court on 30.11.2011, which shall decide the matter strictly in accordance with law within a period of six months from the order of this Court. No order as to costs. .